Opinion
DOCKET NO. A-6057-09T1 DOCKET NO. A-4907-10T1
09-13-2012
180 TURNING LIVES AROUND, INC., Plaintiff-Respondent/Cross-Appellant, v. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MIDDLETOWN, Defendant-Appellant/Cross-Respondent.
Gregory W. Vella argued the cause for appellant/cross-respondent (Collins, Vella & Casello, LLC, attorneys; Mr. Vella, of counsel and on the briefs). Michael B. Steib argued the cause for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4807-09 and Ocean County, Docket No. L-4532-10.
Gregory W. Vella argued the cause for appellant/cross-respondent (Collins, Vella & Casello, LLC, attorneys; Mr. Vella, of counsel and on the briefs).
Michael B. Steib argued the cause for respondent/cross-appellant. PER CURIAM
These two matters, calendared back-to-back, are consolidated for purposes of our opinion. In A-6057-09, defendant, the Zoning Board of Adjustment of the Township of Middletown (the Board), appeals from a Law Division order reversing the Board's denial of plaintiff's application for use and bulk variances to construct and operate a domestic violence shelter. Plaintiff, 180 Turning Lives Around, Inc., cross-appeals from that portion of the Law Division order remanding the matter to the Board for consideration of whether conditions on site plan approval were appropriate. The appeal was stayed pending the Board's remand. On remand, the Board imposed sixteen conditions on plaintiff's site plan approval. Plaintiff appealed to the Law Division arguing one condition was arbitrary, capricious and unreasonable. The Law Division agreed and excised the offending condition. In A-4907-10, cross-appeals were filed by the Board and plaintiff. The Board challenged the removal of the condition and plaintiff challenged the court's determination that the development was a non-residential use.
We have reviewed the arguments presented in these matters in light of the record and applicable law. We affirm.
I.
Plaintiff is a non-profit charitable organization, which "provides services to domestic violence and sexual assault victims." Plaintiff purchased the subject property, Block 605, Lot 59 in Middletown Township, to construct and operate a temporary domestic violence shelter for twelve victims and their families, which was described as "a safe place" for victims to reside until they "obtain a restraining order, get their court case heard, [or] obtain whatever other assistance they need[.]"
The property is approximately 85,000 square feet and located in a B-2 general business zone, having a 267 foot frontage on Magnolia Lane. Magnolia Lane connects to Route 35 North. A stream runs north to south along the eastern edge of the property. Topography, such as wetlands and unique slopes, dictate the placement of the structure on the property.
The property's neighboring developments are both commercial and residential. Across Magnolia Lane to the west, single family homes have been developed, to the north there are undeveloped lots zoned for business use (a B-2 zone), to the east is the rear of a Sears department store, and to the south is an undeveloped residential lot, zoned R-22, which is encumbered by a twenty to twenty-five foot utility easement. That undeveloped property's southern neighbor is a dog kennel.
On March 20, 2008, plaintiff filed an application with the Board, seeking major site plan approval, use and bulk variances, and design waivers for a proposed development, which included a 2½ story, 13,457 square foot temporary shelter for domestic violence victims. The facility included twelve family-size bedrooms capable of housing a maximum of forty-two residents on one floor, and a basement "utilitarian level," comprised of living space, administrative offices, meeting areas, a dining room, a four cooking-module kitchen, an art room, laundry and bathroom facilities, and a computer room. The site plan proposed two access drive aisles: one for deliveries on the north side of the property and the other along the property's south edge, leading to a nineteen-space parking lot located in the rear of the building and another lot of six visitor parking spaces.
The development proposed is a nonconforming use in a B-2 zone. However, as proposed, the structure conformed to all bulk requirements except for a fifty-foot buffer requirement along the border of the southern residential zone. Plaintiff proposed an unobstructed twenty-nine-foot buffer, noting the encroachments to the fifty-foot buffer were its only right of way access aisle and a small portion of a parking area.
The Board held public hearings on plaintiff's application on August 25, 2008; September 22, 2008; November 24, 2008; January 26, 2009; April 27, 2009; June 1, 2009; and June 15, 2009. Plaintiff's witnesses included Anna Diaz-White, its executive director; Ned Gaunt, the project architect; James Kennedy, PE, a State licensed engineer; Jay Troutman, PE, a State licensed traffic engineer; and Peter G. Steck, PP, plaintiff's planner.
Steck asserted the proposed use was designated as an inherently beneficial use under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and suggested the designation of the property in the B-2 zone was "unusual" because "you can't see it from the highway." Similarly, Gaunt noted the proposed shelter incorporated residential design elements to give the structure "more of a residential character," including breaking the building into smaller components with roof lines, trim work, asphalt roof shingles, and landscaping elements. Troutman opined "this proposed use would not generate [a] significant increase in traffic to the area" and believed the projected traffic patterns were "compatible with the existing patterns and the existing infrastructure . . . in the area[.]"
Concerned Citizens for a Safe Middletown, (CCFSM) opposed plaintiff's development. CCFSM offered testimony from John Chadwick, PP, a professional planner. Chadwick opined the proposed use did "not rise to being an inherently beneficial use," characterizing the proposed use as "a transient residential facility." He believed the size, density, and contrast to the neighboring residential single family homes militated against granting a use variance, as the proposed development was "out of character with the neighborhood"; but, on cross-examination, conceded the development was a residential use.
During the public comment portion of the proceedings, attendees addressed the Board. Comments raised concerns regarding safety, traffic congestion, noise, diminished property values, and general aesthetics.
At the conclusion of the comment period during the June 15, 2009 hearing, the Board began its deliberations. The audio recording stops many times throughout the discussion, resulting in gaps in the transcript. The Board focused on the insufficiency of evidence regarding whether plaintiff satisfied the statutory "positive" and "negative criteria" to be entitled to a variance. See, e.g., Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 384 (1990); Medici v. BPR Co., 107 N.J. 1, 4 (1987); House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 526, 534 (App. Div. 2005). Concluding "the use [wa]s inherently beneficial[,]" satisfying the positive criteria, the Board unanimously denied plaintiff's variance application, explaining plaintiff failed to prove the use would not be a substantial detriment to the public good or impair the intent and purposes of the zone plan. Keying on the size of the building and the intensity of the proposed use, the Board stated domestic violence shelters in a residential zone should not exceed a total of fifteen residents, whereas the development sought to serve twelve families. Also, the development as proposed presented a use "akin to a hotel or motel," was accompanied by traffic and security concerns, and may effectively cause rezoning of the remaining vacant lots in the B-2 Zone. Because "the proposed use's intensity and size is a substantial detriment to the Zone Plan and Zoning Ordinances[,]" and the fact that a smaller building would remove plaintiff's need for bulk variances, plaintiff failed to satisfy the negative criteria or prove hardship. The Board's resolution memorializing its determination was adopted on August 24, 2009.
The Board noted "the Township of Middletown permits 'Congregate Care Facilities[,'] such as shelters for victims of domestic violence[,] in the RHA, RHA-1 and B-3 Zone[s]."
Plaintiff filed a complaint in lieu of prerogative writs. The trial judge concluded the proposed use as a domestic violence shelter was "in the upper category of beneficial uses[,]" requiring the Board to "identify the detrimental effect that will ensue from the grant of the variance and may reduce the detrimental effects by imposing reasonable conditions on the use." Determining the Board failed to properly "weigh[] the positive and negative criteria and determine whether[,] on balance[,] the grant of the variance would cause a substantial detriment to the public good," the court reversed the Board's denial, granted the variance, and remanded the matter to the Board to identify those reasonable conditions -- by way of the variance -- that should be imposed on the development to allow the approved use.
The judge memorialized her opinion in an August 2, 2010 order. The Board appeals, contesting the Law Division's reversal of its determination. Plaintiff filed a cross-appeal challenging the need for a remand.
Notwithstanding the cross-appeals, the remand proceeded before the Board. Plaintiff revised its proposal. In response to safety concerns, it added a fence on the east and south perimeters of the property. Also, plaintiff reduced the south-side access aisle from twenty-four feet to twenty feet, and increased the landscape buffer. However, plaintiff refused to reduce the width of the building by twenty-one feet, to implement the fifty-foot buffer.
The Board held a hearing on September 27, 2010, and set forth its findings and conclusions in a later adopted resolution. Plaintiff's site plan was found "deficient," as no credible testimony justified plaintiff's position that it could not reduce the size of the building to provide the required fifty-foot buffer. The Board found:
A transcript of the September 27, 2010 hearing is not within the record.
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The applicant's architect can not [sic] and did not testify that the building could be reduced, nor did the applicant's engineer testify that reducing the width of the building could not be done from an engineering standpoint. The applicant's only reason not to reduce the width of the building, is for the applicant['s] own desire to have the building that they want. The Board finds the applicant's position unsustainable. The negative effect of the use variance and deficient buffer will be substantially reduced if the applicant reduces the width of the building by 21 feet to provide the buffer. The Board balanced the imposition of this condition, with the desires of the applicant and finds that benefits of providing the buffer substantially outweighs the desires of the applicant.
Accordingly, the Board imposed sixteen conditions on site plan approval, the first of which is the focus of plaintiff's appeal. That condition stated: "1. Applicant shall submit[] revised plans reflecting the reduction of width of the building by 21 feet and providing a 50 foot buffer to the [s]outhern [r]esidential [p]roperty." Plaintiff filed a complaint in lieu of prerogative writs challenging this condition to site plan approval as arbitrary and capricious.
Plaintiff's complaint was transferred from Monmouth to Ocean County as a result of a conflict. Further, we stayed our review of the first appeal, Docket No. A-6057-09, pending disposition of the Ocean County proceedings. The Law Division judge concluded the Board's requirement of a full fifty-foot buffer was arbitrary and unreasonable, and ordered the condition excised from the Board's resolution. The Board appealed and plaintiff filed a cross-appeal, Docket No. A-4907-10, challenging the Law Division's finding that plaintiff's intended use was a nonresidential use, which was a key finding for imposing a buffer requirement. We calendared the appeals back-to-back.
II.
Zoning boards make quasi-judicial decisions to grant or deny variance applications within their jurisdiction, Willoughby v. Planning Board of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997), based on their specialized "knowledge of local conditions[,]" Burbridge, supra, 117 N.J. at 385 (internal quotation marks omitted). Accordingly, boards of adjustment are to be accorded discretionary authority when granting or denying applications for variances. Booth v. Bd. of Adj. of Rockaway Twp., 50 N.J. 302, 306 (1967); Kramer v. Bd. of Adj. of Sea Girt, 45 N.J. 268, 296 (1965). A court's scope of review is not to substitute our judgment for that of the municipal board and "not to suggest a decision that may be better than the one made by the board, but to determine whether the board could reasonably have reached its decision on the record." Jock v. Zoning Bd. of Adj. of Wall, 184 N.J. 562, 597 (2005).
Generally, the determination of a zoning board is presumed to be a valid exercise of its discretion. Ibid.; Cell S. of N.J., Inc. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002). However, this presumption is rebuttable. Harvard Enters., Inc. v. Bd. of Adj. of Madison, 56 N.J. 362, 368 (1970). The burden is on the challenging party to show that the board's decision was arbitrary, capricious, or unreasonable. New Brunswick Cellular Tel. Co. v. Borough of S. Plainfield Bd. of Adj., 160 N.J. 1, 14 (1999); Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1988); Kramer, supra, 45 N.J. at 296.
A Law Division judge reviewing a board's determination, Rule 4:69-1, must consider only the record of the zoning board, Kramer, supra, 45 N.J. at 289, and may not substitute its own judgment for that of the board, unless a clear abuse of discretion is identified. Cell South of New Jersey, supra, 172 N.J. at 82.
In our review of such matters, we apply the same standards as the trial court, Bressman v. Gash, 131 N.J. 517, 529 (1993); D. Lobi Enterprises v. Planning/Zoning Bd. of Sea Bright, 4 08 N.J. Super. 345, 360 (App. Div. 2009), giving deference on issues involving "individualized fact finding," when they are grounded on "'sufficient' or 'substantial evidence' in the record." Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of Jersey City, 413 N.J. Super. 322, 332 (App. Div. 2010), certif. denied, 205 N.J. 79 (2011).
However, we extend no deference to purely legal questions, Wilson v. Brick Twp. Zoning Bd. of Adj., 405 N.J. Super. 189, 197 (App. Div. 2009), including whether the law was applied correctly. Nuckel v. Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011). See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
III.
A.
Under docket number A-6057-09, the Board argues the trial court erred in concluding its denial of plaintiff's request for a use variance was arbitrary and unsupported by the evidence. Additionally, the Board argues the Law Division judge failed to make clear findings of fact to support its conclusion and seeks to vacate the August 2, 2010 judgment. We disagree.
The basic principles governing a use variance are set forth in N.J.S.A. 40:55D-70(d), which grants a board of adjustment the power to "[i]n particular cases for special reasons, grant a variance to allow departure from [zoning] regulations . . . to permit: (1) a use or principal structure in a district restricted against such use or principal structure[.]" However,
No variance or other relief may be granted . . . including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance.These statutory provisions embody what are routinely referred to as the positive and negative criteria that must be shown by an applicant to secure a use variance. Smart SMR of N.Y., supra, 152 N.J. at 323; Scholastic Bus Co. v. Zoning Bd. of Fair Lawn, 326 N.J. Super. 49, 55-56 (App. Div. 1999).
[Ibid.]
As explained by the Court in Sica v. Board of Adjustment of Wall, 127 N.J. 152, 156 (1992):
The statute requires proof of both positive and negative criteria. Under the positive criteria, the applicant must establish "special reasons" for the grant of the variance. The negative criteria require proof that the variance "can be granted without substantial detriment to the public good" and that it "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
In this matter, plaintiff's proposed facility by its nature, that is a domestic violence shelter, satisfies the positive criteria because such a shelter is considered an "inherently beneficial" use and "creates special reasons for its grant." Id. at 159-60. When enacting N.J.S.A. 40:55D-66.1, the Legislature underscored the inherently beneficial nature of a "community shelter[] for victims of domestic violence," by requiring municipalities to treat such uses as "single family dwelling units[,]" "permitted . . . in all residential districts of a municipality[.]" The statutory definition of "community shelter for victims of domestic violence" is confined to shelters providing services "to not more than 15 persons who have been victims of domestic violence, including any children of such victims[.]" N.J.S.A. 40:55D-66.2b.
Despite the size of plaintiff's proposed shelter, we conclude the public interest makes the use compelling and beneficial, satisfying the positive criteria. We turn to the evidence proffered to determine whether the proposed inherently beneficial use satisfies the negative criteria.
In Sica, the Court outlined the evaluative process, stating:
First, the [B]oard should identify the public interest at stake . . . ."This balancing[,] 'while properly making it more difficult for municipalities to exclude inherently beneficial uses . . . permits such exclusion when the negative impact of the use is significant.'" Id. at 166 (alterations in original) (quoting Baptist Home of S. Jersey v. Borough of Riverton, 201 N.J. Super. 226, 247 (Law Div. 1984)). Accordingly, a "'decision of a board of adjustment denying . . . a variance [for an inherently beneficial use] because of the failure to satisfy the negative criteria' under the Sica weighing process 'is reversible only if arbitrary, capricious and unreasonable.'" Salt & Light Co. v. Willingboro Twp. Zoning Bd. of Adj., 423 N.J. Super. 282, 289-90 (App. Div. 2011) (alterations in original) (quoting Sica, supra, 127 N.J. at 166-67), certif. denied, 210 N.J. 108 (2012).
Second, the Board should identify the detrimental effect that will ensue from the grant of the variance . . . .
Third, in some situations, the local board may reduce the detrimental effect by
imposing reasonable conditions on the use
. . . .
Fourth, the Board should then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.
[Supra, 127 N.J. at 165-66.]
The trial court's determination the Board's denial was arbitrary and capricious is supported by the evidence in the record. See Kali Bari Temple v. Bd. of Adj. of Readington, 271 N.J. Super. 241, 248 (App. Div. 1994) ("Where a proposed use is inherently beneficial, a balancing test must be employed to determine whether the proposed use complies with the negative criteria." (citing Sica, supra, 127 N.J. at 165-66)). The Board failed to weigh the evidence as outlined in Sica. The resolution denying the use variance ignored the significant public benefit and community need satisfied by the shelter.
Plaintiff's director, Diaz-White, explained existing shelters were "turning away almost twice as many families as [they were] able to serve[.]" Further, but for broad generalizations, the Board did not specify the detrimental effects resulting from granting the use variance. Although the Board suggested the proposed use was "high intensity," "contrary to the zone scheme," and "not in character with the adjoining residential uses on Magnolia Lane," it ignored the evidence adduced at the hearing reflecting the residential design of the structure, its distance from the highway and isolation because of the adjacent vacant lot, and that permissible uses in the B-2 zone included structures such as business offices, dog kennels, funeral parlors, retail stores, billiard halls, fortune tellers, or restaurants. Plaintiff's proposed use offers a transitional character, proposing a smaller than permitted structure, which blends aspects of commercial and residential uses.
The Board concluded granting a variance to allow a non-conforming use was tantamount to "re-zoning" because the use was permitted in B-3 and RHA and RHA-1 zones within the municipality. This ignores the statutory authorization to permit use variances for special reasons. N.J.S.A. 40:55D-70d. As plaintiff points out, the requested "inherently beneficial use" promoting the public welfare provides the requisite "special reason" for appropriate consideration of a use variance. See Burbridge, supra, 117 N.J. at 386.
The judge stated the Board keyed on the "size" of the proposed facility, suggesting plaintiff sought to "overdevelop[]" the property." Yet, the "B-2 zone permits larger building[s] than the one proposed." We agree the Board's findings are not supported in light of the permitted commercial uses for the zone.
Concluding a reasonable condition required reducing the size of plaintiff's proposed structure, which would allow compliance with the fifty-foot buffer, the Board rejected the requests for "C" and "D" variances. However, as noted, plaintiff's application was well within the permissible structure parameters for designatd uses in a B-2 zone, including lot coverage, building area, frontage and side set backs, building height and open space. It appears the Board's "size" analysis, justifying denial because the lot size could not adequately support such a large structure housing twelve families, was not based on parameters of structures for the zone, but rather appeared to be based on the fifteen person limitation from N.J.S.A. 40:55D-66.2b, defining a "community shelter for victims of domestic violence."
Further, the proposed use did not exceed the permitted intensity for the zone. Plaintiff's traffic engineer opined the proposed shelter's traffic was more akin to what you would expect from a residence and was much less than the volume of traffic anticipated by a conforming commercial use. No expert testimony supported the anecdotal suggestions offered during the public comment period regarding increased traffic and noise, particularly in light of the level of traffic and noise accompanying a permitted commercial use, such as a day-care center or kennel. See Children's Inst. v. Verona Twp. Bd. of Adj., 290 N.J. Super. 350, 357-58 (App. Div. 1996) (stating where increased traffic from proposed use would be minimal compared to anticipated traffic from conforming use, traffic may not be considered as a factor constituting a substantial detriment to the public).
The only nonconforming aspect of plaintiff's application was the access's placement within the required fifty-foot buffer area adjacent to the undeveloped residential lot, which is also bordered by a dog kennel. Moreover, the proposal sought to mitigate this issue by enhanced landscaping, retained vegetation, fenced screens, and relocation of the commercial aspects of the use, such as a delivery area to the corner of the property farthest from the southern residential zone. We find no evidence of negative impact arising from the need for a variance from the buffer area requirement.
The Law Division judge properly found the Board's analysis, attempting to support a conclusion that plaintiff's use resulted in a detrimental effect on the proximate residential lots, was unfounded. More important, the Board's analysis did not consider Sica's four-step review. The judge identified the deficiencies stating the Board "failed to identify under what conditions the proposed use would be permitted on the site." See Eagle Grp. of Princeton v. Zoning Bd. of Adj. of Hamilton Twp., 274 N.J. Super. 551, 564-65 (App. Div. 1994) ("A board of adjustment in considering the negative criteria in a case in which undue hardship has been demonstrated must attempt to harmonize the zone plan with the grant of a variance. It may seek to achieve that result, through, for example, buffering requirements or reductions in density of development."). We also note the Board identified no facts showing a detrimental effect would inure from a grant of the use variance and the Board failed to weigh the positive and negative criteria in light of the public good resulting from use as a domestic violence shelter.
Following our review, we find adequate factual underpinnings supporting the Law Division judge's conclusion that the Board's decision was unsupported, making it arbitrary and unreasonable. Further, we conclude the judge correctly reversed the Board's resolution and granted a use variance after finding no substantial detriment to the public.
Plaintiff challenges the ordered remand "for further review to identify any detrimental effect(s) that will ensue from the grant of the use variance and site plan and to impose such reasonable conditions as it may determine necessary to reduce such detrimental effect(s)[.]" We disagree.
Under Sica, a Board must consider whether any possible detrimental effects of granting a use variance to allow a inherently beneficial use can be reduced "by imposing reasonable conditions on the use." Supra, 127 N.J. at 166. "The Board unquestionably has the right to impose reasonable conditions." Orloski v. Planning Bd. of Ship Bottom, 226 N.J. Super. 666, 677 (Law Div. 1988), aff'd, 234 N.J. Super. 1 (App. Div. 1989). Accordingly, while the Law Division judge rejected the detrimental effects articulated by the Board as inapposite, that would not eliminate the Board's need to consider whether reasonable conditions were warranted. See Sica, supra, 127 N.J. at 166 ("Certain effects, such as an increase in traffic, or some tendency to impair residential character, utility or value, will usually attend any nonresidential use in a residential zone." (internal quotation marks and citations omitted)); see also Grundlehner v. Dangler, 29 N.J. 256, 266 (1959) ("Variances allowing new nonconforming uses have generally been viewed with hostility by our courts, which have consistently stressed that variances tend to impair sound zoning and should be granted only sparingly and with great caution."). Accordingly, "[t]o the extent that there are concerns about excessive activity, noise, traffic, parking or other legitimate zoning concerns, the Board and the Township have available the full range of police powers to impose conditions aimed at avoidance of detrimental effects." Kali Bari Temple, supra, 271 N.J. Super. at 251.
Given the Board failed to consider the Sica analysis, we conclude the remand to do so was neither unwarranted nor error. The Law Division judge properly applied the law which "'presumes that boards of adjustment and municipal governing bodies will act fairly and with proper motives and for valid reasons.'" Berninger v. Bd. of Adj. of Midland Park, 254 N.J. Super. 401, 407 (App. Div. 1991) (quoting Kramer, supra, 45 N.J. at 296), aff'd o.b., 127 N.J. 226 (1992).
This leads to the cross-appeals presented in Docket No. A-4907-10, challenging the trial court's rejection of the Board's unwavering decision to impose the fifty-foot buffer requirement for nonresidential uses abutting a residential zone as a reasonable condition to the use variance. The Board argues the buffer requirement was properly grounded on municipal ordinance § 16-606. See Middletown, N.J., Ordinance § 16-606. Plaintiff maintains Ordinance § 16-606 is inapplicable because the proposed use is residential, and alternatively claims driveways are permitted within the buffer area.
The Board's conditions must adhere to specific principles:
"To be valid, conditions must (1) not offend against any provision of the zoning ordinance; (2) not require illegal conduct on the part of the permittee; (3) be in the public interest; (4) be reasonably calculated to achieve some legitimate objective of the zoning ordinance; and (5) not be unnecessarily burdensome to the landowner."A court may excise a condition it finds unreasonable. Darst v. Blairstown Twp. Zoning Bd. of Adj., 410 N.J. Super. 314, 339 (App. Div. 2009). We examine whether the Board's condition "offends against" a zoning ordinance.
[Orloski, supra, 226 N.J. Super. at 672 (quoting 3 Rathkopf, The Law of Zoning and Planning, § 40.02 (4th ed. 1987)).]
We reject plaintiff's suggestion that its proposed use was residential. The proposed shelter capacity exceeded fifteen residents, so that the development falls outside the protective scope of N.J.S.A. 40:55D-66.1, which would classify the community shelter for victims of domestic violence as residential. Consequently, plaintiff's proposed non-residential use triggers application of Ordinance § 16-606.
That said, plaintiff's proposal complies with the buffer requirements because the ordinance permits, within the buffer area, "[d]riveways which are necessary to provide proper means of ingress and egress for parking areas." Middletown, N.J., Ordinance § 16-606B1f(1). Inclusion of the driveway within the fifty-foot zone does not offend the provisions or intent of the ordinance. The Board's contrary interpretation of the ordinance ignores the reasonable construction of the ordinance as written. The Board's interpretation must be rejected as it constrains "'the legislative intent in light of the language used and the objects sought to be achieved.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting Merin v. Maglaki, 126 N.J. 430, 435 (1992)).
The record establishes plaintiff's driveway is necessary ingress and egress to off-street parking and its location results largely from the property's environmental characteristics. The ordinance's specific exception allowing driveways within the buffer area was disregarded by the Board and, consequently, was properly invalidated by the Law Division.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
_______________
CLERK OF THE APPELLATE DIVISION